City of Hutchinson v. Jackson

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NOT DESIGNATED FOR PUBLICATION

No. 113,343

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CITY OF HUTCHINSON,
Appellee,

v.

DANIEL JACKSON,
Appellant.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH Rose, judge. Opinion filed December 23, 2015.
Affirmed in part and reversed in part.

Shannon S. Crane, of Hutchinson, for appellant.

Michael C. Robinson, of Forker, Suter, Robinson & Bell LLC, for appellee.

Before ATCHESON, P.J., GARDNER, J., and BURGESS, S.J.

Per Curiam: Daniel Jackson appeals from his conviction of driving
without a valid license. For the reasons stated below, that conviction is reversed.

Procedural background

On May 7, 2014, Jackson was involved in a car accident in Hutchinson,
Kansas. Due to his involvement in the accident, Jackson was cited for driving
while suspended and following too closely. The municipal court found him guilty
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of following too closely and driving without a valid driver's license. Jackson
appealed to the district court.

The district court conducted a bench trial. Jackson's certified driving record
which showed a suspended status was admitted at trial. He claimed, however, that
he had never obtained a driver's license. The district court believed Jackson's
testimony and found him guilty of driving without a license instead of driving
while suspended. Its journal entry reflects that it found Jackson guilty of
"Amended Count I, driving without a valid driver's license." The parties do not
allege that the record contains any other reference to an amendment, or that the
traffic citation was amended by interlineation, or that any amended complaint or
citation was ever filed. Jackson was also convicted of following too closely but
does not challenge that conviction on appeal. The district court sentenced him to 6
months in jail and a $35 fine, plus court costs.

On appeal, Jackson argues that the district court erred in convicting him of
driving without a license. Jackson claims that: (1) the district court tried the case
de novo, which required it to consider the charges in the original complaint; (2)
the amendment of the complaint was improper because it resulted in him being
charged and convicted with a different crime; and (3) the Double Jeopardy Clause
precludes him from being prosecuted again for driving while suspended. We
agree.

Our scope of review

We use an abuse of discretion standard in reviewing a district court's
decision to allow a complaint or information to be amended. State v. Bischoff, 281
Kan. 195, 205, 131 P.3d 531 (2006). Generally, the district court abuses its
discretion if its decision is arbitrary, fanciful, or unreasonable, based on an error of
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law, or based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801
(2011), cert. denied 132 S. Ct. 1594 (2012). But the district court may also abuse
its discretion when its decision "goes outside the framework of or fails to properly
consider statutory limitations or legal standards." State v. Shopteese, 283 Kan.
331, 340, 153 P.3d 1208 (2007). The burden of establishing that the district court
abused its discretion is on the appellant. Bischoff, 281 Kan. at 205.

The charge at the trial de novo

We begin by reviewing the nature of Jackson's appeal from the municipal
court's finding that Jackson violated a traffic ordinance. When a defendant has
been found guilty of violating an ordinance of a Kansas municipality by a
municipal court, the defendant has the right to appeal to the district court of that
county. K.S.A. 2014 Supp. 22-3609(1) The relevant statute, K.S.A. 22-3610(a),
establishes that on "appeal," the case shall be tried de novo in the district court:

"When a case is appealed to the district court, such court shall hear and
determine the cause on the original complaint, unless the complaint shall be
found defective, in which case the court may order a new complaint to be filed
and the case shall proceed as if the original complaint had not been set aside. The
case shall be tried de novo in the district court."

When the district court conducts a de novo trial, "the municipal court conviction
appealed from is vacated." City of Salina v. Amador, 279 Kan. 266, 274, 106 P.3d
1139 (2005). Under K.S.A. 22-3609 there is no appellate review of previous
orders or judgments, and the prosecution, for practical purposes, starts over. State
v. Legero, 278 Kan. 109, 114, 91 P.3d 1216 (2004).

But the prosecution starts over based upon the original complaint. See
K.S.A. 22-3610(a) (providing that the court shall hear and determine the cause on
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the original complaint). The original complaint against Jackson was never found to
be defective, and the record does not reflect that the court ordered a new complaint
to be filed. On appeal, the prosecution admits that the City never moved to amend
the complaint and no such motion was granted by the trial court. Thus the charge
against Jackson at the trial de novo before the district court was the original charge
of driving while suspended.

The city prosecutor admitted as much during the trial, after defense
counsel's closing argument, in saying:

THE COURT: Mr. Robinson, before you speak, the file shows that Mr. Jackson
was convicted of following too closely and operating with no driver's license, not
driving while suspended. Would you all confirm that?
MR. ROBINSON: I believe that to be true but when you appeal, it's trial de novo and you
start with the original charges.
THE COURT: Okay. Go ahead.

De facto amendment

The City sings a different tune on appeal, arguing that the very fact that
Jackson was convicted in municipal court of driving without a license necessarily
means that his appeal was from that charge. It concedes, however, that the parties
and the district court "erroneously proceeded" under the belief that the charged
offense was driving while suspended. It notes that Jackson was found guilty of
driving without a license in municipal court, so his appeal would be from that
conviction and his only argument on appeal should be to challenge the sufficiency
of the evidence.

This argument would have a certain logical appeal were the district court
proceedings in the nature of a typical appeal rather than a trial de novo, but we
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reject it as contrary to the controlling statute, which specifically provides that
when a case is appealed to the district court such court shall hear and determine
the cause on the original complaint. K.S.A. 22-3610(a). Because the stated
exceptions to that rule are not present here, we apply the plain language of the
statute.

Court's amendment of the complaint

Although the trial de novo was on the charge of driving while suspended,
the district court amended the complaint to conform to the evidence presented
when it convicted Jackson of driving without a license. Jackson argues that the
district court erred in allowing the complaint to be amended because driving while
suspended and driving without a license are different crimes.

The right to amend a complaint or information is statutory. State v. Matson,
260 Kan. 366, 370, 921 P.2d 790, (1996). K.S.A. 22-3201(e) provides that a
complaint or information may be amended "at any time before verdict or finding if
no additional or different crime is charged and if substantial rights of the
defendant are not prejudiced." This statute governs amendments made during the
course of trial. State v. Ferguson, 221 Kan. 103, 105, 558 P.2d 1092 (1976).
According to K.S.A. 22-2202(8), the definition of a complaint includes a traffic
citation signed by a law enforcement officer. On review, we apply a two-step
analysis to determine whether an amendment made during trial is proper. Matson,
260 Kan. at 370. We first ask whether the amendment charged the defendant with
an additional or different crime. 260 Kan. at 370. If not, we ask whether the
amendment prejudiced the defendant's substantial rights. 260 Kan. at 370; see
State v. Wilson, 240 Kan. 606, 608, 731 P.2d 306 (1987); State v. Wentz, No.
97,080, 2007 WL 413136, at *2 (Kan. App. 2007) (unpublished opinion). Pursuant
to this statute, "'the trial court may permit an information to be amended at any
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time before verdict if no new crime is charged and if substantial rights of the
defendant are not prejudiced.'" Ferguson v. State, 276 Kan. 428, 441, 78 P.3d 40
(2003); see State v. Rasch, 243 Kan. 499, 758 P.2d 214 (1988).

Here, the amendment charged an additional or different crime. Jackson was
cited for violating Hutchinson Standard Traffic Offense (STO) 194, which is the
same as K.S.A. 2014 Supp. 8-262, driving while suspended. But the district court
convicted Jackson of violating Hutchinson STO 192, or K.S.A. 2014 Supp. 8-235,
driving without a license. K.S.A. 2014 Supp. 8-235 requires proof that the
defendant was driving without a license, and K.S.A. 2014 Supp. 8-262 requires
proof that the defendant at one point had a license that is now canceled,
suspended, or revoked or proof that the defendant's privilege to obtain a license is
suspended or revoked. Thus driving without a license and driving while suspended
are different crimes. See State v. Bowie, 268 Kan. 794, 999 P.2d 947 (2000); State
v. Armstead, No. 108,533, 2014 WL 349561, at *4-5. (Kan. App. 2014)
(unpublished opinion) petition for rev. placed on hold December 30, 2014.

The City contends that driving without a license is a lesser included offense
of driving while suspended. That argument was thoroughly considered and
rejected in Armstead, and we reject it here. In Armstead, the defendant was
charged with obstructing official duty and driving while suspending. The district
court, however, amended the complaint "'to conform to the evidence and law'" to
driving without a license. 2014 WL 349561, at *1. On appeal, the defendant
claimed that the district court erred in amending the complaint. Applying the two-
step analysis, the panel found that driving while suspended and driving without a
license are different crimes which require proof of different elements. 2014 WL
349561 at *4-5. Because it found that the amendment charged the defendant with a
new crime, the panel did not consider the prejudice step of the analysis.
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Ultimately, the panel reversed the defendant's conviction for driving without a
license. We do the same here.

"A district court lacks jurisdiction to convict a defendant of a crime not charged in the
complaint unless that crime is a lesser offense of the charged crime. State v. Ramirez, 299
Kan. 224, 227-28, 328 P.3d 1075 (2014); State v. Gonzales, 289 Kan. 351, 367, 212 P.3d
215 (2009); State v. Belcher, 269 Kan. 2, 8, 4 P.3d 1137 (2000). A district court has no
jurisdiction to enter judgment for an uncharged crime regardless of the evidence
presented at trial. Gonzales, 289 Kan. at 367." State v. Vasquez, No. 110,735, 2014 WL
5614635, at *2 (Kan. App. 2014) (unpublished opinion).

Accordingly, we find that the district court lacked jurisdiction to convict Jackson
of driving without a valid license, and that it abused its discretion in attempting to
amend the complaint during trial to add a new crime.

Double jeopardy

Finally, Jackson argues that the Double Jeopardy Clause prevents him from
being prosecuted again for driving while suspended.

The district court did not make a specific finding as to the charge of driving
while suspended. Instead, its journal entry finds Jackson guilty of "Amended
Count 1, driving without a valid driver's license," and "guilty of Count 2,
following too closely." The district court made no ruling on the charge of driving
while suspended because the court had amended that charge sometime during the
trial to driving without a valid driver's license, working a de facto dismissal of the
former charge. Jackson's prosecution for that charge was thus terminated without
his consent after he had been placed in jeopardy, so he cannot be prosecuted again
for the charge of driving while suspended based on that same incident. See K.S.A.
2014 Supp. 21-5110 (a)(3).
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We affirm Jackson's conviction for following too closely, and we reverse
his conviction for driving without a valid driver's license.